01983728
02-18-2000
Allen E. Manley, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Allen E. Manley v. Department of the Treasury
01983728
February 18, 2000
Allen E. Manley, )
Complainant, )
) Appeal No. 01983728
v. ) Agency No. 961320 & 971049
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (58), in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal
is accepted in accordance with EEOC Order No. 960.001. For the reasons
that follow, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a GS-12 Revenue Agent at the agency's Internal Revenue Office, Atlanta,
Georgia. Complainant claims that he was subjected to age discrimination
as evidenced by the following incidents, which both occurred in August
1996: (1) he was not selected for promotion to a GS-13 Revenue Officer
position (Position), and (2) his annual performance appraisal (PA)
for June 1995 to June 1996 was lower than warranted by his work during
this period. Complainant contends that his PA was deliberately lowered
by his supervisor (S) in order to disadvantage his application for
promotion to the Position. He argues that his work was much superior
to that performed by younger co-workers who received higher evaluations
and awards, and that his qualifications for the Position were plainly
superior to that of the 49 year old selectee (SE), who was over 40, but
substantially younger than 58 years of age. Complainant asserts that
he has been historically treated unfairly by management both before and
after his reinstatement to employment with the agency in 1982.
Believing he was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed two complaints, which were
investigated by the agency. At complainant's request, the agency then
issued a FAD on these complaints, finding no discrimination. Complainant
now appeals this determination, arguing that the investigation was
inadequate and that all of his arguments and evidence were not properly
considered.<2> The agency requests that we affirm its FAD.
The FAD concluded that complainant failed to establish a prima facie case
of age discrimination regarding either incident because he presented no
evidence to suggest that age was a factor (determinative or otherwise)
in the non-selection or his PA.<3> The FAD then determined that even if
complainant had established a prima facie of age discrimination regarding
these incidents, he was unable to prove that the agency's articulated
reasons were a pretext for age discrimination. Based on the legal
principles set forth in Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
the Commission concurs with the agency's determinations in this case.
Regarding incident 1, the record shows that a panel of three ranking
officials ranked each application using the same method and the same
set of criteria. Under this process complainant's application received
the lowest score and it was not placed on the Best Qualified List
(BQL). According to the selecting official (SO), SE was chosen over
complainant because his application made the BQL, and he had superior
qualifications, especially in terms of years of experience at the GS-12
level (complainant had less than one year of current experience at the
GS-12 level at the time of application). SO considered SE's experience to
be more pertinent, more complex, and more recent than that of complainant.
Although complainant argues that his qualifications are "plainly superior"
noting that he earned a CPA and had successfully handled very complex tax
cases, his supervisors note deficiencies in his current GS-11 and GS-12
level work, and the record shows that the tax cases he refers to were
fifteen years ago. We also find that complainant's arguments that he
was deliberately disadvantaged by management when they failed to give him
"developmental assignments" and did not allow him to work higher grade tax
cases are not persuasive because the record shows that budget concerns
and an agency directive precluded these opportunities. Accordingly,
we do not find that complainant's qualifications were "plainly superior"
to that of SE's. See Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Moreover, we also find that the
record demonstrates that the selection process was fair and objective,
and that SO selected SE because he believed him to be best qualified
for the Position. Furthermore, after a careful review of the record,
we find no evidence that age discrimination was a factor in this decision.
Regarding incident 2, the record shows that complainant received a "fully
successful" rating. Complainant believes this PA is too low, arguing
that several critical factors should have been rated as "outstanding."
Our review of the PA shows that S provided detailed reasons to document
the ratings, and that he submitted into evidence a sample of complainant's
case "trailing" documentation to demonstrate its inadequacy.<4> We note
too the testimony of a former supervisor who corroborates this deficiency
in complainant's work as well. Moreover, as noted in the FAD, we also
find that complainant has failed to produce any evidence to support his
claim that his work during this period warranted a higher evaluation.
More importantly, we again find that the record is devoid of any
indication that S was motivated by age animus against complainant in
formulating the PA.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
2/18/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2We have carefully reviewed the record of evidence and find that it is
sufficient to support a determination in this case.
3Regarding the non-selection, the FAD determined that because the SE
was also over the age of 40 and close in age to complainant, they were
in the same protected class and that a prima facie case was defeated for
this reason as well. However, we find that a nine year age difference is
significant, so that the prima facie case is not defeated for this reason.
See Vasquez v. Department of the Army, EEOC Appeal No. 01933469 (July
11, 1994). We CLARIFY the FAD accordingly.
4Because complainant had only been at the GS-12 level a short time, and
could not been given a rating reflecting a full year of work at this
level, S testified that he gave S the benefit of the doubt and gave
him the same rating as he had earned previously at the GS-11 level.
S reasoned that this would be a higher rating than one would earn in
the first year at a higher level given the increased difficulty of the
work at a higher level. We find that this testimony further belies a
finding that S was motivated by age animus.